Thoughts on Life, Love, Politics, Hypocrisy and Coming Out in Mid-Life

Monday, April 18, 2016

Will SCOTUS Throw Out the Right's Immigration Case?

Other than bashing and stigmatizing gays few things bring the far right closer to orgasm that mistreating and demonizing immigrants - correction, non-white immigrants. The two activities, of course are related in that the far right, especially the "godly Christian" crowd cannot stand anything or anyone who does not conform to their cult and racial niche. This hatred of the "other" is what is really fueling the challengers to Barack Obama's immigration rules in United States v. Texas regardless of what the anti-immigration forces may claim. With the United States Supreme Court scheduled to he oral arguments in the case, some now wonder if the court will punt and find that Texas has no standing to bring the challenge. A piece in The Daily Beast looks at the possibility. Here are article highlights:

They have that
choice because there are, at heart, two major issues at stake in the case:
first, whether Obama exceeded his executive authority, and second, whether
states can sue him if so.

Normally, that
second question—whether a party has standing—is the kind of thing that only
lawyers care about. Standing is a requirement for any lawsuit, and it is at
issue in many of them. But standing rarely makes the headlines, because it’s
boring to ask whether we should even be asking the question the case is asking.
Most non-lawyers would say,Get
to the substance, already.

In this case,
though, standing is substance. Anyone who watches a Republican debate, knows
that immigration policy is a hot issue, and a huge mess. In theory, according
to the Immigration & Nationality Act (INA), all eleven million
“undocumented immigrants”/ “illegal aliens” (you can usually tell what someone
thinks based on which term they use) should be immediately deported from the
United States.

In practice,
however, only Donald Trump thinks that should really happen, and Trump, of
course, is nuts. It would be enormously expensive, disruptive, and cruel to
deport so many people at once. Families would be torn apart, and a massive
system akin to a police state (internment camps included) would have to be set
up, at a direct cost of anestimated $166 billionand an indirect cost of billions more
in economic disruption.

As a result, for
decades, the federal government has prioritized whom to deport and when. But
who gets caught and who doesn’t is often arbitrary, with the government acting
like a fisherman with a tiny net, grabbing a few fish at random but letting
more slip away. Indeed, progressives have complained that deportations have
actuallyincreased under Obama, who is compelled to
uphold the existing law.

Comprehensive immigration reform has
stalled again and again, most recently in 2013, when a bill with support among
conservatives and liberals died in the Housedue to Tea Party nativist fears.

That is why in
2012, and again in 2014, Obama put into place two administrative policies to
attempt to rationalize and prioritize deportations actions. Those policies,
DACA and DAPA, would effectively de-prioritize (“defer action” in their terms)
about 1.2 million and 4 million people, respectively. For three years, they’d
effectively be off the deportation list.

Republicans hate
this. As evidenced by Trump’s rise, a significant portion of the Republican
base really does want to deport 11 million people.

Here’s where
standing comes in. Texas, joined by 24 other states, has said that it will
suffer monetary harm if these policies are enacted—specifically, the cost of
issuing driver’s licenses to all those now-quasi-legal illegal immigrants.

Of course, that
monetary harm isn’t the real reason they’re suing.They’re suing because
they’re Republican-led states (15 Democrat-led ones have filed an amicus brief
on the other side) and they detest these policies. But this is how standing
works all the time.

If
Texas succeeds, then theoretically any state could sue the federal government
to oppose a policy it doesn’t like: an environmental policy, a trade policy.
All federal actions impose some costs on the states; is there anything that
theycouldn’tchallenge?

Perhaps that’s
why the district court’s opinion took 50 pages to grant standing to Texas,
providing three separate bases for it in an opinion built out ofright-wing
talking points. But it’s easy to see the Supreme Court going the
other way. Immigration is a political question, yet here it is at the Supreme
Court, which issupposed to decide the law.

So the Supreme
Court may well say “we don’t decide cases like these” both for reasons of
Roberts Court judicial conservatism, and because if the Court does get to the
merits of this case, we may end up with yet another 4-4 deadlock, and nothing
resolved whatsoever.

On
Obama’s side, the government has argued that DACA and DAPA are within the
executive branch’s discretion. The government has to prioritize somehow, and
this is no different from how previous administrations have prioritized for
decades.

If
the Court reaches those questions, there will be ample law to guide it. But if
the two sides are actually arguing politics while pretending to argue law,
that’s a good sign that this is a political question after all, and not an
actual case or controversy between parties with standing to sue. Maybe this
debate belongs more on the courthouse steps than in the courtroom itself.

I hope Chief Justice John Roberts hands a defeat to the right wing hate merchants.

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Out gay attorney in a committed relationship; formerly married and father of three wonderful children; sometime activist and political/news junkie; survived coming out in mid-life and hope to share my experiences and reflections with others.
In the career/professional realm, I am affiliated with Caplan & Associates PC where I practice in the areas of real estate, estate planning (Wills, Trusts, Advanced Medical Directives, Financial Powers of Attorney, Durable Medical Powers of Attorney); business law and commercial transactions; formation of corporations and limited liability companies and legal services to the gay, lesbian and transgender community, including birth certificate amendment.

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